Fischbach/Lord Electric Co.

National Labor Relations Board - Board Decisions

Oct 12, 1990

300 N.L.R.B. 474 (N.L.R.B. 1990)

474
300 NLRB No. 52
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In the underlying unfair labor practice case, the Board found that the Re-
spondent Union violated Sec. 8(b)(1)(A) and (2) by discriminating against the
individual Charging Parties in hiring hall dispatch decisions. 270 NLRB 856
(1984), affd. in relevant part 827 F.2d 530 (9th Cir. 1987). Following receipt
of the Respondent’s answer to the amended backpay specification, the General
Counsel filed a motion to strike the answer and motion for Summary Judg-
ment. The Board granted the motions with respect to all allegations of gross
backpay and to the formula for calculating net backpay. Concerning the Re-
spondent’s denial of the allegation of interim earnings, the Board, as recited
by the judge, remanded the proceeding for a hearing limited to taking evidence
on the alleged interim earnings of the discriminatees. 290 NLRB 1165 (1988).
2 We deny the General Counsel’s motion to strike the Respondent’s brief.
However, we grant the General Counsel’s motion to strike Respondent’s ex-
ception 5 (the licensing issue). With regard to exception 20 (the settlement
issue), although we deny the General Counsel’s motion to strike this excep-
tion, we note that in addition to two of the reasons set forth by the judge in
sec. A,1 of the Conclusions and Disposition portion of his supplemental deci-
sion (the opposition of the General Counsel and the unreasonableness of the
amount of money offered compared to the amount pled in the specification),
we now also rely on a fact not known to us when addressing the request for
special permission to appeal—that promptly on January 11, 1989, the second
day of the hearing, the four discriminatees formally withdrew their consent
prior to any execution of the previous day’s agreeement. See American Pacific
Pipe Co., 290 NLRB 623 (1988).
Member Devaney, in the absence of execution of the proposed settlement,
finds it unnecessary to pass on the Board’s decision in American Pacific.
In exception 5 the Respondent contends that the failure of discriminatees
Knapp and McKenzie to meet state licensing requirements is evidence of their
deliberate attempts to remove themselves from the Washington State labor
market for journeymen electricians and thus precludes their entitlement to
backpay. We agree with the judge that issue has been fully litigated and finally
resolved against the Respondent. See 290 NLRB 1165 at fn. 5. Further, we
note that the Respondent’s argument constitutes an implicit attack on the Gen-
eral Counsel’s gross backpay formula as applied to Knapp and McKenzie (the
earnings of those electricians dispatched in place of the two discriminatees).
The exception is thus also untimely, given that the Board has already granted
the General Counsel’s Motion for Summary Judgment on the issue of gross
backpay amounts due. We therefore grant the General Counsel’s motion to
strike exception 5.
3 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
We agree with the judge, for the reasons set out in sec. A,3 of the Conclu-
sions and Disposition portion of his supplemental decision, that the Respond-
ent is precluded from relying on any asserted deficiencies in the
discriminatees’ maintenance of registration on the hiring hall referral books
during the backpay period. We further note that to do so would effectively
allow the Respondent to challenge the gross backpay formula in the backpay
specification subsequent to the Board’s having granted the General Counsel’s
Motion for Summary Judgment on that issue.
In the first paragraph of sec. A,2 of the evidence portion of his supple-
mental decision, the judge inadvertently stated that Robert Knapp remained in
the Richland, Washington area until approximately November 1982. As the
judge later correctly found, Knapp left Richland for Texas early in July 1982.
4 Interest shall be computed in the manner prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987). The Respondent shall also deduct from
the total amount due each claimant any tax withholdings required by Federal
and state laws.
1 The underlying case is reported at 270 NLRB 856 (1984). The Supple-
mental Decision and Order also noted earlier resolution by the parties of Case
19–CA–15220, resulting in the case caption contents of ‘‘Fischbach/Lord Elec-
tric Company, Inc. and Jack L. Marsh, an Individual’’ being retained only for
purposes of consistency.
Fischbach/Lord Electric Company and Jack L.
Marsh
International Brotherhood of Electrical Workers,
Local Union 112, AFL–CIO and Michael S.
June and Robert Albert Knapp and Thomas E.
McKenzie and Jack L. Marsh and Jimmy M.
Scott. Cases 19–CA–15220, 19–CB–4486, 19–
CB–4496, 19–CB–4501, 19–CB–4636, and 19–
CB–4650
October 12, 1990
SECOND SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
June 7, 1989, Administrative Law Judge David G.
Heilbrun issued the attached supplemental decision in
this proceeding.1 The Respondent filed exceptions and
a supporting brief. The General Counsel filed motions
to strike certain of the Respondent’s exceptions and its
brief and also filed answering brief. The Respondent
filed a response to the General Counsel’s motions to
strike.2
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board had considered the supplemental decision
and the record in light of the exceptions and briefs and
has decided to affirm the judge’s rulings, findings,3
and conclusions and to adopt the recommended Order
as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified4 and orders that the Respondent, International
Brotherhood of Electrical Workers, Local Union 112,
AFL–CIO, its officers, agents, and representatives,
shall take the action set forth in the Order as modified.
Patrick F. Dunham, for the General Counsel.
David E. Williams and Alex Skalbania (Critchlow & Wil-
liams), of Richland, Washington; and Kenneth Pedersen
(Davies, Roberts, & Reid), of Seattle, Washington, for Re-
spondent Union.
SUPPLEMENTAL DECISION
I. INTRODUCTION
DAVIA G. HEILBRUN, Administrative Law Judge. On Sep-
tember 21, 1988, the National Labor Relations Board issued
a Supplemental Decision and Order, partially granting Gen-
eral Counsel’s pending Motion for Summary Judgment with
respect to an amended backpay specification. By such action
the Board narrowed matters still in controversy as to
amounts of backpay due for discriminatees, as arising from
a prior court-enforced Board Order.1 Further, the hearing di-
rected on these narrowed matters was expressly ‘‘limited to
the determination of a discriminatee’s interim earnings, in-
cluding the availability to the discriminatees of interim em-
ployment and their efforts to seek and retain such interim
employment.’’
475FISCHBACH/LORD ELECTRIC CO.
Each discriminatee has been a journeyman electrician for
years preceding April 1982. Additionally each has main-
tained membership in a home local of the International
Brotherhood of Electrical Workers (IBEW) from various
times prior to 1982, warranting an identifying term ‘‘traveler-
electrician’’ for purposes that relate to this proceeding and
any associated liability to be assessed against Respondent.
The backpay periods applicable to each discriminatee, to
which particular ‘‘excepted period(s)’’ may also apply, are
established as:
Michael June 4/1/82–12/31/83
Robert Knapp 4/1/82–3/31/84
Thomas McKenzie 4/1/82–7/1/82
Jimmy Scott 4/1/82–12/31/83
The matter was heard as a further supplementary pro-
ceeding in Richland, Washington, on January 10, 11, and 12,
1989.
II. EVIDENCE
A. Examination of Discriminatees
1. Michael June: This individual remained in the Richland
area until mid-June 1982. He testified that during that time
he periodically registered with Respondent’s hiring hall, plus
seeking work at the ‘‘N Reactor’’ and the ‘‘FMEF’’ Hanford
facility. Additionally he obtained unemployment compensa-
tion because of knowing that he was ‘‘very low’’ on the hir-
ing books. June had also worked as an electrician in various
States prior to 1982. He once obtained work within a few
days of learning about a 1980 Hanford area strike by return-
ing to his home IBEW Local in Ashtabula, Ohio. June testi-
fied that he believed an IBEW member could obtain work
at locals which were arranging hiring by actually going there.
June acknowledged that it was standard practice, and gen-
eral knowledge, that local chapters of the IBEW had require-
ments such as those that were in place with Respondent. His
general understanding, as held during the backpay period,
was that a person seeking work out of a local had an obliga-
tion to resign the local’s out-of-work book approximately at
least every 30 days in order to reconfirm to the local that
such person was available and still seeking work in the vicin-
ity.
In the summer of 1982 June relocated to New York State
where he ultimately found the employment now held. This
followed brief employment in Erie, Pennsylvania, and con-
temporary out-of-work registration with several IBEW locals
of Western New York State. Late that summer he also trav-
eled to Colorado, Kansas, and Arizona seeking work, in the
last instance making specific application to the Arizona Pub-
lic Service Commission for its Salt River projects. The em-
ployment that ultimately concluded his backpay period
evolved from being hired by Computer Sciences Corporation,
a Virginia-based firm, for full-time work as a field super-
intendent at $25,000 annually in Buffalo, New York.
2. Robert Knapp: This individual remained in the Richland
area until approximately November 1982. Knapp also testi-
fied that he had worked in numerous states during his career
as an IBEW ‘‘traveler,’’ and that this resulted from his own
desire to travel. He testified to variously searching for work
before and after November 1982. Knapp testified he relied
in part on a publication known as the ‘‘CUTE’’ letter. This
served as a clearinghouse for electrical industry employment
nationwide. He subscribed to it throughout the period of time
for which he is now seeking backpay, because it provided in-
formation about jobs that were available for IBEW members
throughout the country. Knapp described his normal method
of seeking employment, as calling friends around the country
to inquire about job prospects plus reliance on the CUTE let-
ter.
Knapp stayed in the Tri-Cities area from the beginning of
the backpay period on May 10, 1982, until sometime in July
1982, when he went to Dallas with his family, and soon
found work. After being laid off there in August 1982,
Knapp went to Beaumont, Texas, where his brother lived, re-
maining there for a period of approximately 3 months. Fail-
ing any job dispatch while in Beaumont, Knapp then moved
to Florida in November 1982, where he worked for brief pe-
riods of time before being laid off again. Knapp then lived
with family in Florida from December 1982 until returning
to the Tri-Cities area in February 1983 for the trial of this
matter. He remained in the area thereafter, living in a person-
ally owned travel trailer and, according to his testimony,
searching nearly daily for work. He did not leave the area
again until the end of his backpay period in February 1984.
During this 1-year period Knapp testified to seeking work
at nine prospective employers with whom he had contact
during that period of time. No independent verification as to
whether he had contacted the employers which he did iden-
tify was produced. Knapp denied taking vacations or being
disqualified for employment from injury at anytime during
his backpay period until he obtained the substantially equiva-
lent employment held to the present time.
3. Thomas McKenzie: This individual has a backpay period
comprising only the second quarter of 1982, but from which
certain excepted periods apply leaving his total practical
backpay span as 5 weeks from mid-April to late May. He
testified that during this brief timespan he traveled from
Richland into Montana and later into California seeking
work. In the process he would register with IBEW hiring
halls of the vicinities reached, and generally seek to find
work through information available from friends within the
industry. McKenzie’s reference for this activity was the
‘‘tramp guide’’ listing for nationwide IBEW locals with use-
ful information pertaining to each of them. He also testified
to checking about work out of the Tri-Cities hall of the Iron
Workers Union.
McKenzie testified to having a career as an IBEW jour-
neyman wireman ‘‘traveller,’’ causing him to work ‘‘prac-
tically clean across the United States in the process of his
jobs.’’ He testified to personally harboring a desire to travel
which led to ‘‘an agreement’’ with his wife regarding this
practice of traveling from place to place to obtain work.
McKenzie admitted to performing many home tasks during
the first 3 weeks of his backpay period. After finishing these
tasks McKenzie traveled to Montana to look for work on
May 5 and 6, 1982. He then returned to the Tri-Cities, re-
maining until the latter part of May when he went to Cali-
fornia. Neither trip resulted in finding work.
McKenzie testified that during the time that he was in the
Tri-Cities during the backpay period he sought employment
by ‘‘looking for work around.’’ However, he did not recall
any specific employers to whom he had applied, nor did he
476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
have any job applications that he testified to filling out dur-
ing this period of time, claiming they had been destroyed in
a fire. He also testified to having visited an Iron Workers
local in the Tri-Cities area during this period of time, but
could not identify it by number or location.
4. Jimmy Scott: Scott had also worked as an IBEW ‘‘trav-
eler’’ in a number of States prior to 1982. Scott also sub-
scribed to the ‘‘CUTE’’ letter, as well as a separate IBEW
newsletter in which job information was carried. Scott did
not seek work at IBEW locals outside the State of Wash-
ington during the backpay period, except for occasionally
calling some out-of-state locals on the telephone. This indi-
vidual remained in the Richland area until mid-1983.
Scott’s primary explanations regarding his efforts to seek
employment emphasized that he was on Local 112’s out-of-
work book during the backpay period, and that he had ap-
plied in Richland for sales and/or maintenance jobs. Scott
listed 31 specific prospective employers where he had sought
work during this 19-month period of time. However he did
not produce any independent records that he had actually
made application for jobs at these places of prospective em-
ployment. Moreover, Scott admitted that he did not have any
previous job experience of any consequence in sales and/or
maintenance areas of employment, and that he would have
had to be trained to perform those types of jobs.
He testified that with financial assistance from a brother
he traveled to his home State of South Carolina where he
commenced residence at his parents’ home and used that as
a base for seeking work. Scott described registering at IBEW
locals in the general vicinity and to obtaining short employ-
ment in South Carolina and in Augusta, Georgia. He later
made contact through a local business agent to the IBEW in
New York City, and from this obtained substantially equiva-
lent employment which warranted a termination of his back-
pay period.
B. Respondent’s Witnesses
George Elgin testified that he has been Respondent’s es-
tablished business manager, financial secretary, and general
overseer of registration documents comprising the record of
Respondent’s past hiring hall procedure. He verified several
features of hiring hall operations as existing during the years
1982 into 1984, including the existence of posted guidelines
and the practice whereby registrants had to reconfirm their
availability monthly. Elgin testified to having the ledger-type
sign-in book and confirmation book of Respondent examined
by dispatching employees of Respondent’s office for pur-
poses of this case.
Laurie Johnson testified that she has been a secretary in
Respondent’s office since at least 1982, and has actively par-
ticipated in the hiring hall operations since that time. Johnson
testified to the specifics of the reconfirmation practice as ex-
isting during years of the backpay periods, and to the roll-
back procedure whereby registrants would be relisted at the
bottom of their particular hiring book after three occasions
of unavailability for work by declination or failure of at-
tempted contact. Johnson had examined hiring book one on
which all discriminatees were signed at various times during
their respective backpay periods, and testified from personal
knowledge to the occasions when rollbacks occurred.
Contentions
General Counsel contends there has been no disturbance
shown in the amount of backpay owed each discriminatee
when controlling doctrine for compliance issues is applied.
Specifically, General Counsel argues that the burden of proof
carried by a Respondent with respect to the diligence of a
search for work, or the existence of available work during
relevant times, has not been remotely met in any instance
here.
Respondent contends first that an accord and satisfaction
had been achieved, which should have been, and now must
be, recognized in resolution of these claims. Alternatively,
Respondent argues both that available work in the Richland
vicinity was shirked by the discriminatees, and that in each
case their failure to achieve substantially more offsetting in-
come was self-induced.
III. CONCLUSIONS AND DISPOSITION
A. Preliminary
1. Accord and satisfaction
In American Pacific Pipe Co., 290 NLRB 623 (1988), the
Board dealt with a claimed accord and satisfaction which
was there argued by an employer defending against a back-
pay claim as ‘‘barring litigation’’ on the issue of its liability.
The Board applied Independent Stave Co., 287 NLRB 740
(1987), the thrust of which was described as follows:
[We] recently held that in evaluating non-Board settle-
ments the Board would examine all the surrounding cir-
cumstances including whether the Charging Party, the
Respondent, and the discriminatee had agreed to be
bound, and the General Counsel’s position regarding
the settlement; whether the settlement was reasonable in
light of the alleged violation, the risks of litigating the
issue, and the stage of litigation; whether fraud, coer-
cion, or duress were present.
On this basis, and considering the facts in American Pacific,
the Board offset backpay due the involved discriminatee by
the amount paid as an intended accord and satisfaction. The
Board pointedly wrote that the claimant and his union had
‘‘voluntarily agreed’’ to the exchange, that the parties exe-
cuted their settlement agreement ‘‘about a month before the
backpay hearing began,’’ and that the settlement was reason-
able considering inherent uncertainties always present in liti-
gation. Other collateral factors were also noted in passing. In
so holding the Board expressly overruled Michael M.
Schafer, 261 NLRB 272 (1982), and Stevens Ford, 271
NLRB 628 (1984), to the extent inconsistent.
Here circumstances of the ‘‘settlement’’ so earnestly
claimed by Respondent were in the nature of a continuum
spanning both days of hearing. The distance from which
these four discriminatees assembled, the tendering of more
than simple business records for their attention, and the final
unanimous position taken by the group that the amount of-
fered, singly or collectively, was inadequate in their view,
represents a highly distinguishable situation from that of
Independent Stave. These factors, coupled with General
Counsel’s resolute opposition to the settlement, creates a fail-
ure of Respondent’s efforts to meet freshly declared stand-
477FISCHBACH/LORD ELECTRIC CO.
ards in matters of this kind. Notably the Board wrote in
American Pacific that the ‘‘amount of money’’ is at least
‘‘one of the many factors to be considered’’ in a determina-
tion of whether to honor a private agreement between parties.
Independent Stave. The extraordinary direct rationale of
American Pacific plainly overrides any contrary implications
as contained in the BNA treatise edited by Charles J. Morris,
and Central Cartage Co., 206 NLRB 337 (1973), a case that
is readily distinguishable. Accordingly, I reaffirm my refusal
to approve this settlement agreement by which $125,000 was
assured for payment, and thus treat the claimed liability of
Respondent strictly on the limited issue stressed by the
Board in its Supplemental Decision.
2. Licensing
The first of two subsidiary points made by Respondent
concerns the lack of State of Washington electrician licenses
on the part of both Knapp and McKenzie during the backpay
period. In footnote 3 of its basic Decision and Order the
Board addressed this point, saying that in raising the subject
Respondent was ‘‘vague’’ and ‘‘not [even] credible.’’ As a
result the Board held that the ‘‘licensing requirement was not
a factor’’ in the assessment of whether unfair labor practices
had been committed. The situation plainly constitutes res ju-
dicata as to this defense, and on that basis I must reject Re-
spondent’s argument as so premised.
3. Hiring hall
It is equally unavailing for Respondent to argue that each
discriminatee failed to seek, or failed to remain eligible for,
work that might have materialized via the hiring hall proce-
dures of registration, maintainence of current status, avail-
ability when called, and the general dispatching pattern after
requisitioning of wiremen by employers. Here the testimony
of Elgin, and the detailed recapitulations of Johnson, must
subordinate to the legally settled conclusion that none of the
four individuals could expect, or would receive, fair and law-
ful processing through the hiring hall. Again, therefore, this
entire avenue fails to assist Respondent in meeting its burden
of proof on the limited issues present. The fact that various
discriminatees tried Respondent’s hiring hall during their
backpay period would not constitute a waiver of rights or
binding condonation of what has been judicially declared as
illegal. Here, too, Respondent meets the blocking effect of
res judicata principles.
B. Central Issues
There is a common thread to a threshold, or tentative,
view of the nature of undertakings by each claimant fol-
lowing the generally collective experience of discrimination
against them all in the eventful spring of 1982. That is their
personal views on how to progress through life in a personal,
family, occupational and financial sense. In each case an am-
bulatory, practically nomadic, history was shown; with each
discriminatee given to, comfortable with, and having seen
success in, a darting, questing, dogged style of locating, as-
suring and fulfilling work in their trade. In this process the
entire country was their job market, both from the standpoint
of where and how they spent younger years, and in terms of
past employment, brief or long-term, acquired and com-
pleted. In this sense any standard of behavior, or more par-
ticularly diligence as the law would require in any situation,
must take into account these allowable individualities. Fur-
ther, the perhaps quaint utility of the CUTE letter, and the
vagaries inherent in word-of-mouth, ‘‘grapevine-type’’ leads
to where an experienced wireman might find rewarding
work, are at least appropriate to each claimant’s normal ef-
forts and expectations. I couple these preliminary observa-
tions with a blanket credibility assessment that each
discriminatee appeared by their testimony to be earnestly and
honestly recounting the facts and motivation of their required
search for interim employment.
It is well-established that a Respondent may mitigate its
backpay liability by establishing how backpay claimants
‘‘willfully incurred’’ losses by ‘‘clearly unjustifiable refusal
to take desirable new employment.’’ Phelps Dodge Corp. v.
NLRB, 313 U.S. 117, 199–200 (1941). To establish such
mitigation the applicable burden is to demonstrate that the
individual ‘‘neglected to make reasonable efforts to find in-
terim work.’’ NLRB v. Miami Coca-Cola Bottling Co., 360
F.2d 569, 575–576 (5th Cir. 1966). Success is not the test
of sufficiency in a discriminatee’s search for interim employ-
ment. Rather, the law ‘‘only requires honest good faith ef-
fort.’’ NLRB v. Cashman Auto Co., 223 F.2d 832, 836 (1st
Cir. 1955). A summarizing statement reads: While the evi-
dence may leave a question of whether [the backpay claim-
ant] could have been more diligent in seeking other employ-
ment, the highest standard of diligence is not required and
doubts must be resolved against Respondent.’’ Otis Hospital,
240 NLRB 173 (1979). In determining if a backpay claimant
made reasonable search for employment, the entire context of
the claimant’s search over the backpay period must be con-
sidered Highview, Inc., 250 NLRB 549 (1980); Saginaw Ag-
gregates, 198 NLRB 598 (1972); Nickey Chevrolet Sales,
195 NLRB 395 (1972). Uncertainty in the evidence is to be
resolved against the wrongdoer. NLRB v. Miami Coca-Cola
Bottling Co., supra.
Here each discriminatee made logical, appropriate and pru-
dent efforts to mitigate the damages flowing from Respond-
ent’s discrimination against them. If these efforts were less
than urgent, spotty as to venturing outside their accustomed
patterns, or unimaginative, these characteristics do not offset
the essential sincerity of their search. A wide geographical
area was used in each case, and a necessary balance struck
between family and career needs. Overall there was a perme-
ating earnestness to each discriminatee’s efforts, and if this
assessment is shaky with regard to McKenzie, his situation
was of such short duration that principles of allowable read-
justment take up any slack. The evidence sufficiently also
shows that employment opportunity was more limited during
the general 1982–1984 timespan than during earlier instances
of job acquisition to which Respondent points. This condition
was markedly so in the Tri-Cities area from the credited evi-
dence, and was persuasively shown to have also been found
in other regions of the country to which the job searches
were carried. Cf. Delta Data Systems Corp., 293 NLRB 736
(1989); L’Ermitage Hotel, 293 NLRB 924 (1989).
Accordingly, I find in terms of the Board’s limiting direc-
tion for hearing that no evidence has been convincingly ad-
vanced to warrant diminishing backpay due any of the four
claimants. As plainly outlined in the amended backpay speci-
fication this includes amounts due in unpaid contributions to
478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
the national electrical benefit fund (NEBF), and the value of
assets distributed in the course of its dissolution.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
Each individual shall be paid by Respondent Union, its of-
ficers, agents, and representatives, the amounts respectively
shown below after their names, plus further interest as accu-
mulating and owing at the time of payment.
Michael S. June $90,188.89
Robert Albert Knapp 76,704.33
Thomas E. McKenzie 5,013.41
Jimmy M. Scott 69,923.52